CREW I citizens fo r responsibility

and ethics in washington

November 23, 2010

By Facsimile: 202-616-6695

Joan Lapara
FOIA Contact
Justice Managem ent Division
U.S. Department of Justice
Room 1111 RFK
950 Penns ylvani a Avenue, N .W .
Washin gton , D.C. 20530-000 1

Re: Freedom of Inform ation Act Request

Dear Ms. Lapara:

Citizens for Responsibility and Ethics in Washington ("CREW") mak es this requ est for
records , regardless of format, medium , or physical characteristics, and including electronic
records and information, pursuant to the Freedom of Information Act (" FOIA"), 5 U.S.C. §§ 552,
et~, and u.s. Department of Ju stice ("DOJ") regulations, 28 C.F.R. Part 16.

Spec ifica lly, CREW see ks a copy of all emails from or to former Assistant Attorney
General John Yoo over which the Justice Manag ement Division (JMD) has custody. Thi s
request includes, but is not limited to , all recovered ema ils referenc ed in a letter from DOJ
attorney Jacquelin e Col em en Snead (attached as Exhibit A) and all emails referenc ed in
correspondence of November 5, 2010, from Assistant Attorney General Ronald Weich to the
Senate and House Judiciary Committees.

In addi tion , CREW see ks all document s conc erni ng DOl' s efforts to recover ema ils from
Mr. Yoo, including but not limi ted to efforts describ ed or reference d by Actin g Deputy Attorney
General Gary Grindler in his February 26,20 10 testim ony before the Senate Judiciary Committee
and his recentl y submitte d wr itten follo w-up to questi ons posed by the Committee.

Please sea rch for responsive records regardless of format, medium, or physical
characteristics. We seek records of any and all kind , including electronic records, audiotapes,
videotapes, photographs, and computer print-outs. Our request includes any telephone messages,
voice mail messages, and dail y agenda and calendars and info rm ation about scheduled meetin gs.

If it is your position that any portion of the requ ested rec ord is exempt from disclosure,
CREW requests that you provid e it with an index of tho se documents, as required under Vaughn
v. Rosen, 484 F.2d 820 (D .C. Cir. 1973), cert. denied, 41 5 U.S . 977 (197 2). As you are awa re, a

1400 Eye Street, N.W., Suite 450, Washington, D.C. 20005 I 202.408.5565 phone I 202.588.5020 fax I www.citizensforethics.org
Joan Lapara
November 23,2010
Page Two

Vaughn index must describe each document claimed as exempt with sufficient specificity "to
permit a reasoned judgment as to whether the material is actually exempt under FOIA."
Founding Church ofScientology v. Bell, 603 F.2d 945, 959 (D.C. Cir. 1979). Moreover, the
Vaughn index must "describe each document or portion thereof withheld, and for each
withholding it must discuss the consequences of supplying the sought-after information." King v.
Us. Dep 't ofJustice, 830 F.2d 210,223-24 (D.C. Cir. 1987).

In the event that some portions of the requested record are properly exempt from
disclosure, please disclose any reasonably segregable, non-exempt portions of the requested
record. See 5 U.S.c. §552(b); Schiller v. Nat 'I Labor Relations Bd., 969 F.2d 1205, 1209 (D.C.
Cir. 1992). If it is your position that a document contains non-exempt segments and that those
non-exempt segments are so dispersed throughout the document as to make segregation
impossible, please state what portion of the document is non-exempt, and how the material is
dispersed through the document. Mead Data Central v. Us. Dep 't ofthe Air Force, 455 F.2d
242,261 (D.C. Cir. 1977). Claims of non-segregability must be made with the same detail as
required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state
specifically that it is not reasonable to segregate portions of the record for release.

Fee Waiver Reguest

In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 28 C.F.R. § 16.11(k), CREW

requests a waiver of fees associated with processing this request for records. The subject of this
request concerns the operations of the federal government and expenditures, and the disclosures
will likely contribute to a better understanding of relevant government procedures by CREW and
the general public in a significant way. Moreover, the request is primarily and fundamentally for
non-commercial purposes. 5 U.S.C. § 552(a)(4)(A)(iii). See, e.g., McClellan Ecological v.
Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987).

Specifically, the requested records are likely to contribute to the public's understanding of
the nature of the destroyed emails of John Yoo, as referenced in the July 29,2009 OPR Report,
"Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the
Central Intelligence Agency's Use of 'Enhanced Interrogation Techniques' on Suspected
Terrorists," and the extent and timing ofDOJ's efforts to restore those emails. Disclosure of the
volume and subject ofMr. Yoo's existing email records, whether in electronic or paper form,
would inform the public about whether and to what extent the destruction of emails was limited
to Mr. Y00' s role in drafting the terror memoranda and may have been the result of willful
actions by Mr. Y00 or others, in violation of DOJ policy and federal laws. Disclosure of the
efforts of DOJ to restore any of the missing emails would inform the public about whether and
the extent to which DOJ and the attorney general have complied with their legal obligations
under the Federal Records Act, and the timeliness ofDOJ's response to congressional inquiries
on this matter. Finally, disclosure of the requested emails would allow the public to determine
Joan Lapara
November 23,2010
Page Three

the appropriateness of DO]' s conclusion that none of the restored emails provides any basis to
change the conclusion of Associate Deputy Attorney General David Margolis.

CREW is a non-profit corporation, organized under section 501(c)(3) of the Internal

Revenue Code. CREW is committed to protecting the public's right to be aware of the activities
of government officials and to ensuring the integrity of those officials. CREW is dedicated to
empowering citizens to have an influential voice in government decisions and in the government
decision-making process. CREW uses a combination of research, litigation, and advocacy to
advance its mission. The release of information garnered through this request is not in CREW's
financial interest. In addition, CREW will disseminate any documents it acquires from this
request to the public through www.scribd.com and CREW's website, which also contains links
to thousands of pages of documents CREW acquired from multiple FOIA requests. See
www.citizensforethics.org. CREW's website includes documents relating to CREW's FOIA
litigation, Internal Revenue complaints, and Federal Election Commission complaints

Under these circumstances, CREW fully satisfies the criteria for a fee waiver.

News Media Fee Waiver Reguest

CREW also asks that it not be charged search or review fees for this request because
CREW qualifies as a "representative ofthe news media" pursuant to the FOIA and SEC
regulation 17 C.F.R. § 200.80(e)(l0). In Nat'[ Sec. Archive v. Us. Dep t ofDefense, 880 F.2d
1381,1386 (D.C. Cir. 1989), the Court of Appeals for the District of Columbia Circuit found the
National Security Archive was a representative of the news media under the FOIA, relying on the
FOIA's legislative history, which indicates the phrase "representative of the news media" is to be
interpreted broadly; "[i]t is critical that the phrase 'representative of the news media' be broadly
interpreted if the act is to work as expected. .., In fact, any person or organization which
regularly publishes or disseminates information to the public ... should qualify for waivers as a
'representative of the news media.'" 132 Congo Rec. S14298 (daily ed. Sept. 30, 1986) (emphasis
added), cited in id.

CREW routinely and systematically disseminates information to the public in several

ways. First, CREW maintains a frequently visited website, www.citizensforethics.org, that
received 33, 453 visits in October 2010. The website reports the latest developments and
contains in-depth information about a variety of activities of government agencies and officials.
In addition, documents that CREW acquired through its FOIA requests and posted on
www.scribd.org, have received 468,197 reads since April 14, 2010.

Second, since May 2007 CREW has published an online newsletter, CREWCuts, that as
of October 2010 has 17,322 subscribers. CREWCuts provides subscribers with regular updates
Joan Lapara
November 23,2010
Page Four

regarding CREW's activities and information the organization has received from government
entities. A complete archive of past CREWCuts is available at
http://www.citizensforethics.org/newsletter.

Third, CREW publishes a blog, Citizens bloggingfor responsibility and ethics in

Washington, that reports on and analyzes newsworthy developments regarding government ethics
and corruption. The blog, located at http://www.citiznesforethics.org/blog. also provides links
that direct readers to other news articles and commentary on these issues. CREW's blog had
1,089 hits in October.

Finally, CREW has published numerous reports to educate the public about govermnent
ethics and corruption. Examples include: The Revolving Door, a comprehensive look into the
post-government activities of24 former members of President Bush's cabinet; 2009 Most
Corrupt Members ofCongress; 2008 Top Ten Ethics Scandals; 2008 Most Embarrassing Re-
Elected Members ofCongress; and Those Who Dared: 30 Officials Who Stood Up For Our
Country. These and all other CREW's reports are available at
http://vvvvw.citizensforethics.org/reports.

Based on these extensive publication activities, CREW qualifies for a fee waiver as a
"representative of the news media" under the FOIA and agency regulations.

Request for Expedition

Pursuant to 5 U.S.C. § 552(a)(6)(E)(I) and 28 C.F.R. § l6.5(d)(iv), CREW requests that

DOJ expedite the processing of this request. As required by DOJ regulations, 28 C.F.R. §
16.5(d)(2), CREW is submitting its request for expedition to the director of Public Affairs. A
copy of CREW's request is enclosed as Exhibit B.

CREW also requests that DOJ expedite its request pursuant to 28 C.F.R. § 16.5(d)(ii). As
explained above, CREW is engaged primarily in the dissemination of information that it gathers
from a variety of sources, including the FOIA, and seeks the information requested in this FOrA
request for the express purpose of disseminating it to the public. In addition to www.scrib.org
that contains the documents CREW has acquired through the FOIA, CREW's website contains
numerous examples of its efforts, including reports it has published based on information it
receives through the FOIA. For example, CREW's report, "Record Chaos: The Deplorable State
of Electronic Record Keeping in the Federal Government," was based in significant part on
documents it requested under the FOrA from a variety of agencies, including DOl

There is a particular urgency to inform the public about the circumstances underlying the
destruction of the emails of former high-ranking OLC official John Y 00, especially given the
Joan Lapara
November 23,2010
Page Five

recent assertion by Assistant Attorney General Weich to the Senate and House Judiciary
Committees that its review of recovered emails "that were not available to OPR during its
investigation" gave it no reason to "change[] the conclusions of Associate Deputy Attorney
General David Margolis as reflected in his Decision Memorandum." Even though DOJ quite
obviously has completed its recovery efforts and review of this matter, it has yet to respond to a
request from the National Archives and Records Administration, made in February of this year,
to explain within 30 days the missing records, including a report if DOJ determines an
unauthorized destruction occurred.

Nor has DOJ responded to written questions to then Acting Deputy Attorney General
Gary Grindler from the Senate Judiciary Committee following his February 26,2010 testimony
before that Committee. The Committee's five follow-up questions ask the following: (1) has
DOJ "opened a formal investigation into the circumstances surrounding the destruction of these
e-mail records"; (2) "[w]hat steps is the Justice Department taking to retrieve the missing
emails"; (3) whether DOJ will "determine whether the destruction of Mr. Y 00' sand Mr.
Philbin's e-mails violated any criminal statutes"; (4) whether DOl's inspector general will "be a
part of this investigation"; and (5) whether DOJ will "determine whether Mr. Y 00 used a second
e-mail address - including a nongovernmental e-mail - to communicate with officials from the
White House." Despite the passage of nearly nine months, the DOl's only response to date has
been to inform the Committee that the review commissioned by Mr. Grindler "is nearing
completion."

The inconsistency of these messages - that DOJ, on the one hand, is ready to conclude
there is nothing in the recovered Y 00 emails to change the conclusions of the OPR Report and,
on the other hand, cannot yet answer any questions about their destruction - raises a serious
question about whether the Department is attempting to cover up the truth behind the missing
emails and whether it has complied with its obligations under the Federal Records Act. Under
these circumstances, the public has a pressing need for the information contained in the
documents CREW is requesting.

Pursuant to 28 C.F.R. § 16.5(d)(3), I hereby certify that the basis for CREW's request for
expedition, as outlined above, is true and correct to the best of my knowledge and belief.

If you have any questions about this request or foresee any problems in releasing fully the
requested records, please contact me at (202) 408-5565. Also, if CREW's request for a fee
waiver is not granted in full, please contact our office immediately upon making such
Joan Lapara
November 23,2010
Page Six

determination. Please send the requested records to Anne L. Weismann, Citizens for
Responsibility and Ethics in Washington, 1400 Eye Street, N.W., Suite 450, Washington, D.C.
20005.

'-..-/-------- / ..
'

Anne L. Weismann
Chief Counsel

Enclosures

cc: Matthew Miller

EXHIBIT A
 U.S. Department of Justice
Civil Division
Federal Programs Branch
20 Massachusetts Avenue N.W. Rm 7214
Washington, DC 20530

Jacqueline Coleman Snead Tel: (202) 514-3418

Senior Counsel Fax: (202) 616-8470

November 18, 2010

FOR SETTLEMENT PURPOSES ONLY

VIA ELECTRONIC MAIL AND FIRST-CLASS, U.S. MAIL

Anne Weismann, Esq.

Citizens for Responsibility and Ethics in Washington
1400 Eye Street, N.W., Suite 450
Washington, DC 20005

Re: CREW v. Department ofJustice, Case No.1 0-750

Dear Anne:

This letter responds to your offer to dismiss the above-referenced lawsuit if the Office of
Legal Counsel ("OLC") explains how and where it located the emails responsive to your
Freedom of Information Act ("FOIA") request for emails to or from former Deputy Assistant
Attorney General John Yoo between June 2001 and May 2003. As explained in OLC's partial
responses to your FOIA request dated August 31, 2010 and September 30, 2010, OLC conducted
a search of only the paper and electronic records of Mr. Yoo that OLC retained. Upon an
attorney's departure, OLC generally retains a copy of the existing electronic files in a "Departed
Users" folder (containing subfolders arranged by name) in a networked directory labeled "OLe,"
which OLC can access. OLC generally retains hard copy files left by an attorney in boxed
storage. In response to your FOIA request, OLC retrieved the several boxes labeled with
Mr. Yoo's name from storage and located the "jyoo" folder in the "Departed Users" folder. The
boxes and that computer folder were searched for emails within the time period specified in your
FOIA request. I OLC has described the results ofthat search in letters dated August 31, 2010 and
September 30, 2010 and in the draft Vaughn index provided October 15,2010.

1 As explained in its letter dated August 31, 2010, OLC discovered the folder of another

former OLC attorney in Mr. Yoo's retained email files; that folder was reviewed as well for
responsiveness to CREW's FOIA request.
 -2-

Although the above explanation is all the consideration you requested for dismissing the
instant lawsuit, I would like to respond to an implicit question in your November 10,2010 email
to me, in which you mention "a recent AP article" that referenced '''newly found e-mails' sent by
John Yoo." While you did not provide a copy of the article, I did find that phrase in an AP
posting from November 9, 2010. The emails referenced in that article were not located in files
retained and searched by OLC. OLC's search, as described above and explained previously, was
limited to records retained by OLC and did not include "any paper or electronic records of
Mr. Y00' s emails available elsewhere in the Department." See Letter to Anne Weismann from
Paul Colborn (Sept. 30,2010). The Department informed the Senate Judiciary Committee during
a February 26,2010 hearing that the Assistant Attorney General for Administration was working
with Department information technology experts to determine whether any ofMr. Yoo's emails
(other than those OLC retained) were recoverable. The Justice Management Division is the
custodian of those recovered emails.

I trust that based on this information, you will agree to dismiss this lawsuit with each
party to bear its own costs, and I will work with you to facilitate that voluntary dismissal. In the
event that you decide to litigate the adequacy ofOLC's search, then I suggest we discuss a
briefing schedule and submit ajoint proposed schedule to the Court. I look forward to hearing
from you soon.

,-.'r::1,... ,QUELINE
COLEMAN SNEAD
Senior Counsel
Federal Programs Branch
Civil Division
EXHIBITB
 CREW I citizens for responsibility
and ethics in washington

November 23,2010

By Fax (202-514-5331) and First-Class Mail

Matthew Miller
Director
Office of Public Affairs
U.S. Department of Justice
Room 1128
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001

Re: FOIA Request for Expedition

Dear Mr. Miller:

Pursuant to U.S. Department of Justice (DOJ) Freedom ofInformation Act (FOIA)

regulations, specifically 28 C.F.R. § l6.5(d)(2), Citizens for Responsibility and Ethics in
Washington (CREW) requests that you grant its request for expedition of the enclosed FOIA
request of this date.

CREW's request seeks copies of all emails to or from former Assistant Attorney General
John Yoo over which the Justice Management Division (JMD) has custody. CREW also seeks
all documents concerning DOl's efforts to recover emails from Mr. Yoo.

CREW requests expedition in light of the widespread and exceptional media interest in
this matter and the questions that have been raised about the circumstances under which the
emails of Mr. Y00 were destroyed, the extent to which DOJ has attempted to restore the missing
emails, and DOl's continuing failure to answer inquiries about this matter from Congress and the
National Archives and Records Administration. Just recently Assistant Attorney General Ronald
Weich advised the House and Senate Judiciary Committees that DOJ had review recovered
emails not available to OPR when it conducted its investigation into the actions of Mr. Y00 and
others in drafting the now discredited OLC torture memos, and saw no reason to change
Associate Deputy Attorney General David Margolis' conclusions as reflected in his Decision
Memorandum. But DOJ has refused to make those recovered emails available for public review
and has yet to answer longstanding questions from Congress about the missing emails. Please
note that CREW's prior request for expedition of its February 26, 2010 FOIA request related to
this matter was granted. Similarly, expedition is warranted here.

Moreover, as CREW explained it is FOIA request, CREW is a non-profit organization

1400 Eye Street, N.W., Suite 450, Washington, D.C. 20005 I 202.408.5565 phone I 202.588.5020 fax I www.citizensforethics.org
Matthew Miller
November 23,2010
Page Two

engaged primarily in disseminating information it gathers from a variety of sources, including the
FOIA, and seeks information requested in this FOIA request for the express purpose of
disseminating it to the public. CREW's website, www.citizensforethics.org, contains links to
thousands of pages of documents CREW acquired from multiple FOIA requests, as well as
documents related to CREW's FOIA litigation, other complaints, and CREW reports based in
part on documents acquired through the FOIA. Similarly, CREW posts documents received
through the FOIA on www.scribd.org, and its documents have received 468,197 visits since
April 14, 2010.

For the foregoing reasons as well as those set forth in CREW's FOIA request of
November 18,2010, CREW requests that you grant its request for expedition.

Pursuant to 28 C.F.R. § 16.5(d)(3), I hereby certify that the basis for CREW's request for
expedition is true and correct to the best of my knowledge and belief.

Sincerely,

Anne L. Weismann
Chief Counsel

Enclosure